Gonzalo Garcia-Fabela v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2021
• Docket: 19-70427
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GONZALO GARCIA-FABELA, No. 19-70427

Petitioner, Agency No. A099-010-084

v. MEMORANDUM* MERRICK GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted March 2, 2021 Portland, Oregon

Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge. Partial Concurrence and Partial Dissent by Judge PAEZ

Gonzalo Garcia-Fabela petitions for review of an order of the Board of

Immigration Appeals (BIA) denying his motion to terminate for lack of

jurisdiction; denying his motion to remand; and dismissing his appeal from an

immigration judge’s decision denying his applications for cancellation of removal,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Page 2 of 5

asylum, withholding of removal, and protection under the Convention Against

Torture (CAT).

1. The BIA did not err in denying Garcia-Fabela’s motion to terminate his

removal proceedings. Garcia-Fabela argues the immigration court lacked

jurisdiction because his initial notice to appear (NTA) did not include the time and

date for his first hearing in Immigration Court. We previously rejected this

jurisdictional argument in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019),

cert. denied sub nom. Karingithi v. Barr, 140 S. Ct. 1106 (Feb. 24, 2020), but

Garcia-Fabela argues that Karingithi is irreconcilable with the Supreme Court’s

later decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019).

We conclude, however, that Karingithi is not clearly irreconcilable with

Kisor because the Karingithi court reached its conclusion by interpreting the

regulations itself, rather than by deferring to the BIA. 913 F.3d at 1160–61. Thus,

we will not reexamine controlling precedent. Cf. Miller v. Gammie, 335 F.3d 889,

892–93 (9th Cir. 2003). As such, Garcia-Fabela’s motion to terminate is

foreclosed by Karingithi, and we affirm the BIA’s denial of the motion. Close v.

Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (“So long as the court can

apply our prior circuit precedent without running afoul of the intervening authority

it must do so.” (quotation omitted)). Page 3 of 5

2. The BIA reasonably concluded that menacing under Oregon Statute

§ 163.190 is a crime involving moral turpitude (CIMT) and did not err in denying

Garcia-Fabela’s motion to remand for further consideration of his application for

cancellation of removal. We defer to the BIA’s interpretation of whether a crime

involves moral turpitude, if warranted. Ceron v. Holder, 747 F.3d 773, 778 (9th

Cir. 2014) (en banc).

Although the BIA’s decision in Garcia-Fabela’s case is unpublished, the

BIA has since issued a published decision concluding that menacing under Oregon

law is a CIMT. See Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019). To grant

Garcia-Fabela’s petition, we would therefore need to find that the BIA’s decision

in Matter of J-G-P- unreasonably categorized menacing as a CIMT and therefore

does not warrant Chevron deference. See Ceron, 747 F.3d at 778.

Under Oregon law, “[a] person commits the crime of menacing if by word or

conduct the person intentionally attempts to place another person in fear of

imminent serious physical injury.” Or. Rev. Stat. § 163.190. The BIA reasoned

that, unlike simple assault, menacing requires specific intent to create fear in the

victim, which reflects a vicious motive indicative of moral turpitude. See Matter of

J-G-P-, 27 I. & N. Dec. at 645. The BIA also concluded that the severity of the

intended fear—fear of imminent serious physical injury—indicates that any

substantial step taken toward inducing that fear must be reprehensible. See id. at Page 4 of 5

646–49. The BIA thus held that the offense of menacing in violation of § 163.190

is categorically a CIMT. Id. at 650.

We find that the BIA’s conclusion that menacing under Oregon law is a

CIMT is a reasonable one. Specifically, we agree that the requisite specific intent

combined with the severity of the intended fear illustrate that the crime of

menacing involves a culpable mind and reprehensible act, and therefore defer to

the published decision. See Latter-Singh v. Holder, 668 F.3d 1156, 1161, 1163

(9th Cir. 2012) (“The intent to instill great fear of serious bodily injury or death in

another constitutes the ‘vicious motive or corrupt mind’ demonstrative of a crime

involving moral turpitude.”). Accordingly, we affirm the denial of Garcia-Fabela’s

motion to remand.

3. The BIA’s decision to deny Garcia-Fabela’s applications for asylum,

withholding of removal, and CAT protection was supported by substantial

evidence. We have repeatedly found that Garcia-Fabela’s purported social group

of culturally Americanized Mexicans is not a cognizable particular social group for

purposes of asylum or withholding. See, e.g., Delgado-Ortiz v. Holder, 600 F.3d

1148, 1151–52 (9th Cir. 2010) (per curiam). Further, even if Garcia-Fabela could

establish membership in a particular social group, a desire to be free from

harassment by criminals bears no nexus to a protected ground. See Zetino v.

Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). Moreover, the BIA’s unchallenged Page 5 of 5

finding that Garcia-Fabela could relocate to another part of Mexico precludes relief

through asylum and withholding altogether. See 8 C.F.R. § 1208.13(b)(2)(ii),

(b)(3); id. § 1208.16(b)(2), (b)(3). As to CAT protection, Garcia-Fabela failed to

establish it is more likely than not that he would be tortured by or with the

acquiescence of a public official in their official capacity. In sum, the BIA’s

conclusions were supported by substantial evidence, and we accordingly affirm the

BIA’s dismissal of Garcia-Fabela’s appeal from the immigration judge’s decision.

PETITION FOR REVIEW DENIED. FILED Gonzalo Garcia-Fabela v. Garland, 19-70427 APR 26 2021 Paez, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the majority’s holding that the BIA did not err in denying Garcia-

Fabela’s motion to terminate removal proceedings for lack of jurisdiction. I

respectfully dissent, however, from the portion of the disposition holding that the

BIA reasonably concluded that menacing under Oregon Revised Statutes §

136.190 is a crime involving moral turpitude (CIMT).

A CIMT “requires two essential elements: reprehensible conduct and a

culpable mental state.” Silva-Trevino, 26 I. & N. Dec. 826, 834 (BIA 2016). In my

view, the BIA’s conclusion, both in its decision in Garcia-Fabela’s appeal and in

its precedential decision in Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019), that

Oregon’s menacing law necessarily involves a reprehensible act is unreasonable.

The BIA erred by unreasonably distinguishing Oregon’s menacing statute

from a precedential line of cases holding that “simple assault” crimes are not

CIMTs, 27 I. & N. Dec. at 646-47, even though § 163.190 is derived from common

law “simple assault.” See State v. Garcias, 679 P.2d 1354, 1356 (Or. 1984). Under

the BIA’s precedent, only where a criminal statute “contains elements that deviate

from those associated with simple assault and battery and involves some

aggravating factor that indicates the perpetrator’s moral depravity” may it fall

outside of the rule that “simple assault” is not a CIMT. Matter of Wu, 27 I. & N.

Dec. 8, 11 (BIA 2017) (internal quotation marks omitted) (emphasis added). The

BIA held that § 163.190’s requirement of “specific intent to cause fear of imminent serious physical injury” was a sufficiently aggravating factor to render it

categorically morally turpitudinous. 27 I. & N. Dec. at 644, 647. The BIA’s

analysis is unreasonable. Oregon’s menacing statute does not require among its

elements1 any “aggravating factor that indicates the actor’s moral depravity.”

First, by the plain terms of the statute and the state court cases construing it,

§ 163.190 does not require an intent to cause any physical injury—let alone serious

physical injury—nor does it require actual fear or harm of any kind—let alone

physical injury—to result. See Garcias, 679 P.2d at 1356; Commentary to the

Proposed Oregon Criminal Code § 95 at 97.

Second, because the statute does not require an intent to harm or for any

harm to result, our decisions in Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th

Cir. 2006), Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012), and Coquico v.

Lynch, 789 F.3d 1049 (9th Cir. 2015) compel concluding that § 163.190 does not

contain an aggravating factor necessary to qualify as a CIMT. The BIA’s strained

reading of those cases to imply the opposite is unreasonable.

In Fernandez-Ruiz, we held that Arizona’s assault statute did not

categorically involve moral turpitude because it lacked as aggravating factors both

a specific intent to cause harm and a requirement that actual harm result. 468 F.3d

1 The elements of Oregon’s criminal menacing statute are “(1) intentionally; (2) attempting; (3) by word or conduct; (4) to place another person in fear of imminent serious physical injury.” State v. Cummings, 576 P.2d 36, 37 (Or. Ct. App. 1978). Page 2 of 5 at 1167. We noted that the statute “contains absolutely no element of injury

whatsoever, as it prohibits conduct that merely places another person ‘in

reasonable apprehension of’ physical injury.” Id. We observed that a “simple

assault statute which permits a conviction for . . . mere threats, or for conduct that

causes only the most minor or insignificant injury is not limited in scope to crimes

of moral turpitude.” Id. So too, here, where Oregon’s menacing statute may be

violated by words and does not require an intent to harm, nor any harm to result.

The BIA acknowledges that its decision in Matter of J-G-P- is in “some

tension” with Fernandez-Ruiz but relies on the distinction that the statute there

“reached threats that place another in apprehension of physical injury” whereas the

Oregon statute sets a threshold of “fear of imminent serious physical injury.” 27 I.

& N. Dec. at 648 (emphasis in original). This distinction, however, is irrelevant to

our analysis that a conviction under a statute that “does not require inflicting bodily

injury of any kind” is not a CIMT. 468 F.3d at 1167 (emphasis in original).

The BIA attempts to avoid this clear conflict by suggesting that our

subsequent holding in Latter-Singh displaced Fernandez-Ruiz’s rule of decision.

27 I. & N. Dec. 648-49. The BIA’s reliance on Latter-Singh, however, is

misplaced: the elements of the statute at issue there do not align with those of the

statute in Fernandez-Ruiz, nor with the elements of § 163.190. Notably, the statute

at issue in Latter-Singh requires “substantial harm” to result. 668 F.3d at 1162.

Page 3 of 5 In Latter-Singh, we held that California Penal Code § 422, which

criminalized making threats with the specific intent to “terrorize,” is a CIMT. We

emphasized that that the statute required the perpetrator to intend injury (not just

fear of injury), that the conduct actually “resulted in substantial harm by being so

unequivocal, immediate and specific as to convey to the person a threatened

gravity of purpose,” such that the victim actually experienced “sustained fear” for

their “own safety.” 668 F.3d at 1162. None of these aggravating factors inhere in §

163.190. These distinctions demonstrate how § 163.190 departs from the

generically defined crime involving moral turpitude which requires “reprehensible

conduct:” because Oregon’s law covers attempts to cause fear, it is the intent that is

reprehensible, not the conduct.

Finally, the BIA fails to explain why this court’s reasoning in Coquico v.

Lynch does not apply here. There we found the threat associated with “unlawful

laser activity” under California Penal Code § 417.26—which “requires only an

intent to place the victim in ‘apprehension or fear of bodily harm’”—was not

categorically a CIMT because it did not meet Latter-Singh’s requirement that the

victim experience “sustained fear” for their safety nor require that the victim

experience any harm at all. 789 F.3d at 1054 (internal citation omitted); see also id.

at n.4 (“[W]hen an act cannot be characterized as inherently grave, base, or

depraved, then adding to these acts an intent to commit them does not change that

Page 4 of 5 conclusion.”). The BIA does not offer any rationale why Oregon’s menacing

statute should be analyzed differently. Instead, the BIA asserts, without basis, that

the portions of Coquico’s reasoning that call into question the BIA’s conclusion

that § 163.190 is a CIMT are mere dicta. 27 I. & N. Dec. at 650. The BIA’s

summary dismissal of controlling authority is not reasonable.

For the foregoing reasons, I would hold that the BIA’s decision that §

163.190 is a CIMT is unreasonable. I would grant Garcia-Fabela’s petition on this

ground and remand to the BIA for further consideration of his application for

cancellation of removal. Accordingly, I do not address whether the BIA’s decision

to deny Garcia-Fabela’s applications for asylum, withholding of removal and CAT

protection was supported by substantial evidence.

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